In T v R [2018] NZCA 56, [2018] 3 NZLR 308 the Court of Appeal reversed its own precedent and held that appeals from pre-trial bail decisions should be treated as general appeals, and not appeals against a discretion. In coming to that holding the Court expressly disclaimed the idea it was pronouncing in on the test for post-trial bail appeals. At [21] it stated (double square brackets are my addition):
[21] Sections 13 and 14 of the [[Bail]] Act address bail pending sentence and bail pending appeal. They are both headed “[e]xercises of discretion”. These provisions, or appeals against decisions made under them, do not arise in the present case, and we do not address them.
The Court of Appeal intentionally disclaimed any change to the test on appeal from decisions about post-trial bail under ss 13 and 14. It follows that the previous Court of Appeal approach remains in force in relation to bail appeals from ss 13 and 14 of the Bail Act 2000. And that approach said that appeals are to be treated as appeals against a discretion. You can see this approach in action in R v Hertnon [2009] NZCA 518 at [9] and R v Leone [2009] NZCA 325, (2009) 24 CRNZ 231 at [12].
Despite this, since T v R the High Court has opted to apply the T v R approach to appeals under ss 13 and 14. The High Court has not done so blindly. In D v Police [2018] NZHC 628 at [7], Palmer J set out reasoning as to why the Court of Appeal’s holding in T v R should apply equally to appeals under ss 13 and 14. Other judges have adopted and referred to Palmer J’s reasoning (see T v Police [2018] NZHC 1039 at [11]). Other judges have simply applied the T v R test without consideration of the differences (see P v Police [2018] NZHC 694 at [7]).
It’s also important to be clear what the High Court’s approach is. There is no attempt to distinguish these cases on the facts in a time-honoured and well-accepted lower court technique of dodging binding authority. The issue here is a legal test. There is no getting around it by building up a plausible case for distinguishing an individual case on the facts. The legal test has to be the same in every appeal against a post-trial bail decision.
His Honour Justice Palmer’s reasoning may well be correct (I think there are meaningful differences relating to post-trial bail that may warrant a different approach but that’s not the point of this post). Certainly, I think the Court of Appeal would agree with his Honour, if the Court’s comments in T v R are any indication, so on that basis my view on the merits is unlikely to be vindicated.
But the difficulty with the High Court’s approach is that the Court of Appeal has not in fact overturned its previous rulings on the test for bail appeals under ss 13-14. And it doesn’t matter what the Court of Appeal might say now if it was asked; it matters what its last pronouncement on the matter was. And the Court of Appeal’s last pronouncement on the matter is the opposite of what the High Court is doing.
It’s an interesting phenomenon where it seems that High Court judges are going on what I accept is a clearly telegraphed intention by the Court of Appeal, rather than following binding Court of Appeal decisions as to the test on appeal for post-trial bail decisions. My modest suggestion though is that second-guessing binding authority based on the Court of Appeal’s current vibe is not how a court hierarchy works. That is especially so where the Court of Appeal took the trouble in T v R to disclaim any suggestion it was pronouncing on appeals under ss 13 and 14.
And the High Court’s rewriting of the ss 13 and 14 test simply compounds the problem. As long as a High Court Judge fudges the test then the matter is unlikely to get to the Court of Appeal for an actual reversal.
All of which is to say I better get started on drawing up my own list of Court of Appeal decisions that I don’t want the High Court to follow.
(NB: sorry for the lack of links and the anonymisation of these decisions that makes the references a mess of letters. Quite rightly, bail decisions are suppressed until final determination, and I don’t know which of these cases have been determined finally.)
Strictly obiter 